JUDGMENT :

[Vikram D. Chauhan, J.]

1. Heard Sri Gagan Pratap Singh, learned Amicus Curiae for the Appellant in Jail Appeal No.7728 of 2010 and Sri Anadi Krishna Narayana, learned counsel for the Appellant in Criminal Appeal No.7484 of 2010 and learned A.G.A. for the State and perused the record.

2. The present appeal is filed by Appellants challenging judgment and order dated 20th October, 2010 passed by the Special Judge (DAA), Agra. By means of impugned judgment, Appellants-Kailash and Baba Thakur @ Prawesh Kumar Singh has been convicted under Section 394 I.P.C. and sentenced to undergo 10 years rigorous imprisonment and Rs.5000/-fine. Further, Appellants have been convicted under Section 302/34 I.P.C. and sentenced to undergo life imprisonment and Rs.10,000/-fine; Appellant-Kailash has also been convicted under Section 411 I.P.C. and sentenced to undergo 2 years rigorous imprisonment; Appellant-Kailash has further been convicted under Section 25 of Arms Act and sentenced to undergo 3 years rigorous imprisonment and Rs.10,000/- fine.

3. The prosecution case as per first information report is that on 23rd June, 2005 at about 6.30 pm, informant (PW1) Babua along with his son Aslam (PW2) were going to tempo stand Mantola road to meet informant's second son Arif. When they reached near Subhash Road then one cloth agent Amar Nath (PW4) made distress call that his belongings have been taken away forcefully and on aforesaid distress call, informant and his son saw that two persons were running towards the powerhouse in which one was having countrymade pistol and a bag and the other accused was having countrymade pistol. On hearing distress call of Amar Nath, the son of informant deceased-Arif and Aslam (PW2), Shahid Anwar, Mohd. Shahid, Fateh Singh (Tempo Driver), Ilbas, Rakesh Sharma, Muhiuddin and Amar Nath started running to catch aforesaid accused persons and caught hold of one of the accused-person, who on being caught, fired which hit son of informant, namely, Arif, who suffered firearm injury and as a result of the same, accused person was led free and on the same occasion one tempo driver hit his tempo with the accused person, as a result of same, he sustained injury and fell down. Thereafter, Amar Nath got back his bag, which was forcefully taken by accused person and when informant and his son Aslam reached the spot, accused was having countrymade pistol in his hand and there were four live cartridges in his pocket, which was taken in custody. Accused person informed that his name is Kailash s/o Asharfi Lal. Injured-Arif was brought to the hospital by Aslam and other persons and in intervening period police personnel came. The weapon cartridges and bag of Amar Nath was deposited in the police station and first information report was lodged after being scribed by Nasruddin and on the basis of the same, Case Crime No.98 of 2005, under Section 394, 411, 302 I.P.C. and Case Crime No.99 of 2005 under Section 25 Arms Act was registered at 19.20 hours on the same day.

4. The investigation in present case was carried on and panchayatnama of deceased was prepared on 23rd June, 2005. The panchayatnama was held at the S.N. Hospital, Agra on 23rd June, 2005 at 20.20 pm and same was completed at 22.05 pm. The panch witnesses of panchayatnama were Haji Mohd. Gulfam, Abdul Haneef, Mohd. Muim, Shamimoddin, Allauddin and as per opinion of panch witnesses deceased Arif died on account of firearm injury. Thereafter, body was sent for post mortem examination and post mortem held on 24th June, 2005 at 10.00 am. The post mortem was conducted by Dr. A.P. Singh (PW-6). The following injuries were found in the post mortem report:-

“Firearm wound of entry 0.4 cm X 0.4 cm situated on the anterior wall of stomach in the upper part 0.5 cm left to the midline at a level 2 cm below xephisterum. Cavity deep on probing probe reaches on the peritoneal cavity. Blackening and tatooing present.

Fracture of 3rd lumber vertebra. Metallic bullet 3 cm X 0.8 cm rec